Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GRIFFITH WILLIAMS
| The Queen (on the application of Farid Hilali)
|- and -
|The City of Westminster Magistrates' Court
|The Crown Prosecution Service
|The Secretary of State for the Home Department
James Lewis QC and Melanie Cumberland (instructed by CPS) for the Interested Party
David Perry QC (instructed by TSols) for the Intervener
Hearing dates: Thursday 6 November 08
Crown Copyright ©
Lord Justice Dyson: this is the judgment of the court.
"I would allow the appeal and set aside the order which was made by the Divisional Court. I would affirm the decision by the senior district judge to order the applicant's extradition to Spain. I would do so on the ground that the offences of conspiracy to commit the offence of murder of persons in the United States and of destroying, damaging or endangering the safety of aircraft, contrary to section 2 of the 1982 Act, are the only offences in respect of which he is to be extradited."
"ONE.- The facts may constitute multiple offences of conspiring to terrorist murder through membership of a terrorist organisation Al Qaeda without prejudice to subsequent classification and as emerges from legal classification which appears in the First Legal Ground of said Indictment in relation to Farid Hilali (a) "Shakur.
TWO. – In accordance with that stated in articles 503, 504 and 505 of the Criminal Procedure Act preventative custody is ordered for Mr Hilali due to the extreme circumstances of the facts object of these proceedings, to the risk of absconding from the actions of justice as demonstrated by the fact that he has had to be surrendered via extradition and in view of that gravity and while the necessary steps are performed as regards the accused, who, despite the fact that he has been in custody in the UK which must, if applicable, be taken into account on sentencing, has been at the disposal of Spanish Justice for three days."
"Finally, we indicated that the surrender of Mr Hilali by the UK authorities under the EAW was only for him to be tried, if appropriate, for conspiracy to commit the murders of 11th September, not for membership Al-Qaeda. It must, however, be stressed, and this is important, that in both the INDICTMENT…OF MR HILALI FROM 2003, AS WELL AS THE DECISION ORDERING THAT HE BE REMANDED IN CUSTODY, MY CLIENT CONTINUES BEING CHARGED WITH BOTH: MEMBERSHIP OF A TERRORIST ORGANISATION AND CONSPIRACY FOR THE MURDERS OF 9-11".
"Mr Hilali is in prison under a special internment regime. This means that his oral and written communications are monitored, that visits are recorded, the letters read and the conversations listened to. He can only enjoy 3 hours in the courtyard (with the other prisoners) and he will remain in an individual cell".
"(a) a quashing order, quashing the decision of City of Westminster Magistrates' Court decision that it does not have jurisdiction to hear the claimant's complaint that there has been a breach of specialty in this case;
(b) A mandatory order, directing City of Westminster Magistrates' Court:
(i) to enquire into the suggested breach of the specialty rule and the assurance as to solitary confinement;
(ii) to enquire as to whether the claimant is accused of the criminal conduct alleged in the European arrest warrant, or merely suspected;
(iii) if appropriate request the return of the claimant to the United Kingdom.
(c) Alternatively, a declaration that the Spanish court is acting in breach of the specialty rule and asking for the return of the claimant to the United Kingdom.
"(i) There are specialty arrangements in place between the United Kingdom and Spain.
(ii) Section 54 of the Extradition Act 2003 ('the 2003 Act') provides for an issuing judicial authority to make a request for an extradited person to be dealt with for an offence for which he was not surrendered. No such request has been received from the issuing judicial authority in the Claimant's case.
(iii) In the extradition context, the Court can only act in accordance with the powers provided for by the 2003 Act and there is no power under the 2003 Act which would allow it to give directions to a Court of another Sovereign State.
(iv) If there has been a breach of speciality, this should be resolved by way of an appeal against the decision of the Spanish Court to any higher Spanish Court and if necessary then to the European Court or through diplomatic channels."
"2. That Farid Hilali is being investigated exclusively on account of the events specified in the European Arrest Warrant, those which in fact gave rise to the warrant being certified by the United Kingdom authorities.
3. In view of the above, and with reference to point (4) of paragraph 2 of the general observations in your letter, there has been no infringement of the principle of specificity, since we are faced with a simple stratagem of the defence which does not affect the Spanish judicial proceedings, and that no response need be submitted to the Administrative Tribunal unless it is requested; in any event, this reply can serve the purpose."
"…on 11 February 2008, having received the order [of that date] and having inspected its contents, a judicial decision was handed down that same day permitting these proceedings to be taken against Hilali Farid exclusively for multiple acts of conspiracy and not for membership of a terrorist organisation, for which his surrender had not been authorised by the English authorities."
The relevant specialty provisions
(1) A person's extradition to a category 1 territory is barred by reason of specialty if (and only if) there are no specialty arrangements with the category 1 territory.
(2) There are specialty arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—
(a) the offence is one falling within subsection (3), or
(b) the condition in subsection (4) is satisfied.
(3) The offences are—
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence;
(c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;
(d) an offence which is not punishable with imprisonment or another form of detention;
(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;
(f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
(4) The condition is that the person is given an opportunity to leave the category 1 territory and—
(a) he does not do so before the end of the permitted period, or
(b) if he does so before the end of the permitted period, he returns there.
1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases:
(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has retuned to that territory after leaving it;
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the specialty rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the specialty rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given in voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(e) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4.
The decision shall be taken no later than 30 days after receipt of the request. For the situation mentioned in Article 5 the issuing Member State must give the guarantees provided for therein."
The jurisdiction issue
The claimant's submissions
Jurisdiction of the district judge
Jurisdiction of the High Court
"to permit the validity of the acts of one sovereign state (including the courts of that state) to be re-examined and perhaps condemned by the courts of another would very certainly "imperil the amicable relations between governments and vex the peace of nations"": per Fuller CJ in Oetjen v Central Leather Co (1918) 246 US 297, 304.
"...albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights."
Conclusion on jurisdiction
Breach of the specialty rule